IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR OKALOOSA COUNTY, FLORIDA JPMORGAN CHASE BANK,

NATIONAL ASSOCIATION, Plaintiff, v. CYRUS R. HARRINGTON, III, et al, Defendants. JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff, v. CYRUS R. HARRINGTON, III, et al, Defendants. CASE#: 2010-CA-003447-S CONSOLIDATED INTO CASE #: 2008-CA-000094-S / CASE#: 2008-CA-000094

DEFENDANTS RESPONSE TO MOTION TO STRIKE AFFIRMATIVE DEFENSES Defendants Cyrus R. Harrington and Marcela Harrington, by and through their undersigned counsel, file their response to the Chases Motion to Strike Harringtons Affirmative Defenses filed March 5, 2013, as follows: In Florida, any defense that does not deny the facts of the opposing partys claim but rather raise[s] some new matter which defeats the opposite partys otherwise apparently valid claim, should be pled as an affirmative defense. Tropical Exterminators, Inc. v. Murray, 171 So.2d 432, 433 (Fla. 2nd DCA 1965); see also Storchwerke, GMBH v. Mr. Thiessens Wallpapering Supplies, Inc., 538 So.2d 1382, 1383 (Fla. 5th DCA 1989) (an affirmative defense is a pleading that, in whole or part, bars or voids the cause of action asserted by an opponent in the preceding pleading).

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In Moore Meats, Inc. v. Strawn In and For Seminole County, 313 So.2d 660, 661662 (Fla. 1975), the Florida Supreme Court, quoting Henry Trawick with approval, distinguished an affirmative defense thus: In pleading, avoidance means an allegation of new matter in opposition to a former pleading that admits the facts alleged in the former pleading and shows cause why they should not have their ordinary legal effect. This brings us to scholarship. Every law student should learn that two classes of defensive pleas in bar exist. The first is a plea by way of traverse. This means a denial of ultimate fact pleaded in the preceding pleading. The second class of defensive plea is one by way of confession and avoidance. All affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to which they are directed and allege additional facts that avoid the legal effect of the confession. (emphasis added). Thus, there appear to be two criteria to determine whether a particular defense should be raised as an affirmative defense: (1) whether the defense includes additional facts that are not apparent from the initial pleading, and (2) whether the defense would constitute an avoidance, i.e. whether it admits the potential for liability but demonstrates reasons why liability is not appropriate in a particular case. Whether or not a particular defense is a new matter in avoidance has been a subject of controversy in multiple cases. In Tropical Exterminators, 171 So.2d 432, 433, for example, the court debated whether a drivers sudden blackout, which allegedly caused an accident, should properly have been raised as an affirmative defense, since nothing in the general denial of negligence indicated this might be the defense. Although the majority felt that a general denial was sufficient, Justice Driver, dissented, stating: A litigant and the courts ought not to be left to the processes of discovery to ascertain the issues to be tried, but one relying upon the Page 2 of 19

defense of sudden blackout should declare his defenses as explicitly as the plaintiff declares his grounds for relief. To hold otherwise invites strong probabilities of a plaintiff being bushwacked at trial. 171 S.2d at 434. Notably, the court did not hold that raising this issue as an affirmative defense would have been inappropriate or subject to being stricken; rather, the court merely held that a general denial of negligence was sufficient to raise the issue. As noted by the dissent, the better practice is for defendants to declare [their] defenses as explicitly as the plaintiff declares his grounds for relief. Perhaps as a response to the inherent uncertainty about what defenses must be pled and what defenses should be pled, Florida courts have generally disfavored the striking of affirmative defenses. A motion to strike defenses as redundant, immaterial or scandalous should only be granted if the material is wholly irrelevant, can have no bearing on the equities, and no influence on the decision. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Thus, where the allegations in the affirmative defenses are relevant and have a bearing on the equities, they should not be stricken as redundant or immaterial. McWhirter, Reeves at 214. See also, Boswell v. Boswell, 877 So.2d 829, 830 (Fla. 4th DCA 2004) (A motion to strike should rarely be used to challenge the merits of a pleading); Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884, 885 (Fla. 5th DCA 1979) (Where ... a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike) (citations omitted); Citizens & S. Realty Investors v. Lastition, 332 So.2d 357, 358 (Fl. 4th DCA 1976) (reversing an order striking an Page 3 of 19

affirmative defense where [t]he defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact ... created); Van Valkenberg v. Chris Craft Indus., Inc., 252 So.2d 280, 284 (Fla. 4th DCA 1971) (stating that "a motion to strike is not favored and is viewed with skepticism"), quashed on other grounds, 267 So.2d 642 (Fla.1972). In general, Florida courts have favored defendants providing as much information and as many facts as possible in raising defenses, simply to place the plaintiff on notice concerning the potential defenses in a case. Because defenses that are not raised are waived under Rule 1.140(b), Fla. R. Civ. P., careful pleaders raise any potential defense that is legally sufficient on its face. As noted above, affirmative defenses should not be stricken unless they are wholly irrelevant, can have no bearing on the equities, and no influence on the decision. Chase has not argued that any of the Harringtons defenses are legally insufficient. Rather, Chase argues that the Harringtons defenses should be stricken as redundant or immaterial under Rule 1.140(f). Per Trawicks Florida Practice and Procedure, in this context redundant means foreign to the issues or needless repetition of allegations, while immaterial matter has no essential or important relationship to the issues or unnecessary elaboration of material allegations. Where any portion of the material included in the motion to strike is relevant, the motion to strike should not be granted. Lovi v. North Shore Bank, 137 So.2d 585 (Fla. 3rd DCA 1962). As discussed in more detail below, each of the affirmative defenses raised by the Harringtons is legally sufficient on its face, is relevant to the issues in this case, and has

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the potential to affect the outcome of the case. Under these circumstances, striking any of these affirmative defenses would be in error. First Affirmative Defense In its complaint, Chase asserted that all conditions precedent to the commencement of this action have been performed, excused, or waived. Chase now contends that the Harringtons general denial of this allegation was sufficient to place performance of conditions precedent at issue in this case, and that the first affirmative defense denying that allegation should be stricken as redundant. This contention misstates the law. Rule 1.120(c), Fla. R. Civ. P., specifically provides that while the performance or occurrence of conditions precedent may be pled generally, a denial of performance or occurrence shall be made specifically and with particularity. See also, W.J. Kiely & Co. v. Bituminous Cas. Corp., 145 So.2d 762, 763 (Fla. 3rd DCA 1962) (defendant failed to specifically plead lack of cooperation by insured, placing burden of proving lack of cooperation on defendant insurer). Defendants first affirmative defense denies generally that all conditions precedent have been performed, excused, or waived, and then references the specific conditions that defendants contend constituted conditions precedent that have not been met. Chase further argues that the defendants first affirmative defense is redundant because the specific conditions that defendants are raising are pled in separate defenses. These specific conditions are pled as separate defenses (in addition to being pled as failure of a condition precedent) because each may constitute a defense to the action even if the court finds that they are not a condition precedent to an action to enforce the contract. Defendants may plead affirmative defenses alternately, and are

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not required to elect between inconsistent affirmative defenses at the pleading stage. As provided by Rule 1.110(g), A party may . . . state as many separate . . . defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both. The allegations contained in and referenced by the defendants first affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Second Affirmative Defense Defendants second affirmative defense alleges that certain intentional or negligent acts committed by WaMu and/or Chase bar recovery under the contract. The specific acts that defendants are claiming bar recovery are pled in separate counts, because each may constitute a defense even if the court finds that they were not negligent or intentional. Just as with the first affirmative defense, this defense assumes that a contract exists but alleges additional facts that defendants contend should bar recovery under that contract, and pleads specific facts supporting that allegation. Thus, this defense meets the definition of an affirmative defense. Again, the allegations contained in and referenced by the defendants second affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should

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not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Third Affirmative Defense. Defendants third affirmative defense alleges that the contract is unenforceable because WaMu intentionally or negligently committed fraud in the initiation and underwriting of the contract. This is clearly an affirmative defense, because it assumes that there was a contract and a breach of that contract, but alleges additional facts that, if proven, would constitute a defense against the enforceability of the contract. Thus, this defense is not redundant to the general denials of the facts alleged in the complaint; instead it raise[s] some new matter which defeats the opposite partys otherwise apparently valid claim and should be pled as an affirmative defense. Tropical Exterminators, Inc. v. Murray, 171 So.2d 432, 433 (Fla. 2nd DCA 1965). In addition, fraud is specifically listed as an affirmative defense in Rule 1.110(d), Florida Rules of Civil Procedure. Rule 1.120 provides that In all averments of fraud . . . the circumstances constituting fraud . . . shall be stated with such particularity as the circumstances may permit. See also, Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972) (fraud and misrepresentation must be pled affirmatively). Thus, a general denial that the contract is enforceable would not be sufficient to raise an allegation of fraud. Fourth Affirmative Defense

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Defendants fourth affirmative defense raises new facts that relate to Chases entitlement to enforce the note. Again, the defense does not contest the existence of the note, but questions whether Chase owns the note or is entitled to enforce it. Clearly, this defense is a confession and avoidance that is required to be pled affirmatively. Defendants fourth affirmative defense also raises additional facts that indicate some of the grounds on which defendants contentions are based. The allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Fifth Affirmative Defense Defendants fifth affirmative defense alleges that Chase is not a person entitled to enforce the note because it does not meet the definition of a holder under 671.201(21) and 673.3011 and Fla. Stat., noting that the copy of the note Chase has provided is not payable to bearer and is not endorsed in blank. Again, this is a proper affirmative defense because it admits the existence of a note, but alleges additional facts as an avoidance. Although Chase argues that a general denial is sufficient to raise this issue, this affirmative defense raises additional facts that serve to alert the plaintiff to the specific defects that defendants are claiming bar the relief plaintiff seeks. See, e.g. Antonacci v. Denner, 149 So.2d 52, 53 (3rd DCA 1963) (defendant pled theft

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of a negotiable instrument to overcome allegation that plaintiff was a holder in due course). The allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Sixth Affirmative Defense The defendants sixth affirmative defense alleges that the note does not meet the definition of a negotiable instrument under 673.1041, Fla. Stat., because it contains undertakings other than the payment of money. Again, this is a proper affirmative defense because it assumes the validity of the note but raises additional facts that, if proven, preclude Chase from being a person entitled to enforce the note. Whether Chase qualifies as a person entitled to enforce the note and mortgage is an essential element of this case. Chases complaint does not specifically claim that the note is a negotiable instrument, but Chase relies on 673.3091, Fla. Stat., which allows the re-establishment of a lost instrument and is only applicable to negotiable instruments. The allegations set out in this affirmative defense serve to put Chase on notice of the facts defendants are relying on in denying that the note constitutes a negotiable instrument. These allegations are not wholly irrelevant, clearly have a bearing on the

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equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Seventh Affirmative Defense Defendants seventh affirmative defense also relates to Chases entitlement to enforce the note. Chase claims that it received the note pursuant to a purchase and assumption agreement between the FDIC and Chase wherein Chase assumed some of WaMus assets and some of its liabilities. Again, this affirmative defense does not deny that a note and mortgage exist, merely question Chases ownership of them. The transfer of both negotiable and non-negotiable notes is governed by Article 9 of the Uniform Commercial Code, Chapter 679 of the Florida Statutes. The defense alleges that the purchase and assumption agreement did not transfer the collateral because it did not contain a reasonable description of the collateral being transferred pursuant to the requirements of 679.1081, Fla. Stat. The allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972).

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Eighth Affirmative Defense In defendants eighth affirmative defense, defendants deny the authenticity of the endorsement found on one of the two non-identical copies of the note produced in this case. Pursuant to 673.3081, Fla. Stat., all signatures are presumed authentic unless specifically denied in the pleadings. Thus the statute requires any challenge to the authenticity of a signature be pled affirmatively. Although 673.3081 still recognizes a presumption that the signature is authentic and authorized, the affirmative denial of the authenticity of the signature serves to shift the burden of proving the authenticity of the endorsement and her authorization to endorse the note to the plaintiff. If the signature on this version of the note proves to be inauthentic or unauthorized, it will clearly bear on both the negotiability of the note and, if the note is not negotiable, on the ownership of it. Thus, the allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Ninth Affirmative Defense In defendants ninth affirmative defense, defendants allege that Chase is not a holder in due course, nor entitled to the rights of a holder under 673.3021. Again, defendants are not contesting the existence of a note, but raising an avoidance Chase

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is precluded from recovering under the note and mortgage because they do not qualify as a holder in due course. Thus, this is properly an affirmative defense. Defendants allege that Chase did not acquire the note for value or in good faith, and they had express or constructive knowledge that the note was in default when they acquired it. Although Chase argues that a general denial is sufficient to raise this issue, this affirmative defense raises additional facts that serve to alert the plaintiff to the specific defects that defendants are claiming bar the relief plaintiff seeks. See, e.g. Antonacci v. Denner, 149 So.2d 52, 53 (3rd DCA 1963) (defendant pled theft of a negotiable instrument to overcome allegation that plaintiff was a holder in due course). Because Chases status as a holder, and as a holder in due course, are critical to both their standing to enforce the note and the defenses the defendants are allowed to raise, the allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Tenth Affirmative Defense Pursuant to 673.3021, a party who accepts a negotiable instrument with knowledge that it is already overdue cannot be a holder in due course of that instrument. Defendants tenth affirmative defense specifically alleges that if the note was transferred to Chase, Chase accepted the instrument with the knowledge that it

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was already in default. In fact, Washington Mutual had already begun foreclosure proceedings at the time Chase alleges that it received the note. Again, defendants are raising an avoidance, i.e. a reason why Chase cannot enforce the note rather than a defense that the debt is not owed. Again, Chases status as a holder or a holder in due course are critical issues in this case, and the allegation that Chase was aware that the note was overdue or had been dishonored is directly relevant to that issue. The allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Eleventh Affirmative Defense The National Housing Act, 12 U.S.C. 1701X(c)(5), creates an affirmative duty on behalf of lenders to provide homeownership counseling to borrowers who are facing foreclosure. These statutory servicing requirements must be met before a lender can initiate a foreclosure action. Defendants eleventh affirmative defense alleges that Chase failed to meet this statutory requirement and is therefore precluded from pursuing a foreclosure action until such time as they have met this statutory requirement. As noted above, the plaintiffs failure to perform all conditions precedent must be pled affirmatively. Rule 1.120(c), Fla. R. Civ. P. (a denial of performance or occurrence

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shall be made specifically and with particularity); see also, W.J. Kiely & Co. v. Bituminous Cas. Corp., 145 So.2d 762, 763 (Fla. 3rd DCA 1962) (defendant failed to specifically plead lack of cooperation by insured, placing burden of proving lack of cooperation on defendant insurer). Twelfth Affirmative Defense Section 559.715, Fla. Stat. requires that an assignee of a note that has been transferred give notice to the borrower within 30 days. Again, this statute creates an affirmative duty on the part of note holders that must be met before enforcement of the note is appropriate. Defendants twelfth affirmative defense alleges that Chase failed to provide notice within thirty days of the assignment of the note from the FDIC to Chase. As noted above, the plaintiffs failure to perform all conditions precedent must be pled affirmatively. Rule 1.120(c), Fla. R. Civ. P. (a denial of performance or occurrence shall be made specifically and with particularity); see also, W.J. Kiely & Co. v. Bituminous Cas. Corp., 145 So.2d 762, 763 (Fla. 3rd DCA 1962) (defendant failed to specifically plead lack of cooperation by insured, placing burden of proving lack of cooperation on defendant insurer). Thirteenth Affirmative Defense Defendants thirteenth affirmative defense alleges that Chase failed to meet the statutory requirements of the Truth in Lending Act (TILA), which also requires notice from a lender to a borrower after a note is assigned. As noted above, the plaintiffs failure to perform all conditions precedent must be pled affirmatively. Rule 1.120(c), Fla. R. Civ. P. (a denial of performance or occurrence shall be made specifically and with particularity); see also, W.J. Kiely & Co. v. Bituminous Cas. Corp., 145 So.2d 762,

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763 (Fla. 3rd DCA 1962) (defendant failed to specifically plead lack of cooperation by insured, placing burden of proving lack of cooperation on defendant insurer). Fourteenth Affirmative Defense Defendants fourteenth affirmative defense is a defense not to the note proper, but to the amount that Chase claims is owed. Again, this is an avoidance, and is thus properly raised as an affirmative defense. Clearly, the amount owed is relevant to the case and the allegation that Chase has improperly charged additional and unwarranted fees has a bearing on the equities. The allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Fifteenth Affirmative Defense The mortgage requires that the lender, before seeking to enforce the mortgage, send a notice of acceleration to the borrower. As noted above, the plaintiffs failure to perform all conditions precedent must be pled affirmatively. Rule 1.120(c), Fla. R. Civ. P. (a denial of performance or occurrence shall be made specifically and with particularity); see also, W.J. Kiely & Co. v. Bituminous Cas. Corp., 145 So.2d 762, 763 (Fla. 3rd DCA 1962) (defendant failed to specifically plead lack of cooperation by insured, placing burden of proving lack of cooperation on defendant insurer).

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Sixteenth Affirmative Defense Defendants sixteenth affirmative defense alleges that WaMu, and later Chase, failed to provide defendants with legitimate and non-predatory access to debt management. This is a statutory condition precedent created by federal law to assist homeowners who are in financial difficulty. Defendants allege that Chase, in particular, failed to act in good faith and that their actions caused defendants to lose a short sale contract on the home. This allegation is, again, in the nature of an avoidance. Chase was required to provide certain services to defendants, and by failing to do so defendants allege that they have forfeited their right to foreclose on the mortgage, at least until this statutory condition has been met. As noted above, the plaintiffs failure to perform all conditions precedent must be pled affirmatively. Rule 1.120(c), Fla. R. Civ. P. (a denial of performance or occurrence shall be made specifically and with particularity); see also, W.J. Kiely & Co. v. Bituminous Cas. Corp., 145 So.2d 762, 763 (Fla. 3rd DCA 1962) (defendant failed to specifically plead lack of cooperation by insured, placing burden of proving lack of cooperation on defendant insurer). The allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both

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quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Seventeenth Affirmative Defense Ultimately, an action to foreclose a mortgage is an equitable action, and unclean hands is a standard affirmative defense in equity. Quality Roof Servs. V. Intervest National Bank, 21 So.3d 883 (Fla. 4th DCA 2009); Shahar v. Green Tree Servicing LLC, No. 4D11-1111 (Fla. 4th DCA 2013). The defendants affirmative defense raise multiple issues indicating that Chase may have acted in bad faith and with unclean hands. The allegations contained in this affirmative defense are not wholly irrelevant, clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Conclusion All of the defendants affirmative defenses are, as required, in the nature of a confession and avoidance, i.e. they acknowledge the existence of and potential enforceability of the note and mortgage, but raise additional matters that, if proven, would preclude the plaintiff from recovering in the action. None of the affirmative defenses are wholly irrelevant, and all clearly have a bearing on the equities, and may ultimately influence the decision of this case. A motion to strike, therefore, should not be granted. Gonzalez v. Nahf Natl Bank, 93 So.3d 1054, 1057 (Fla. 3rd DCA 2012);

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McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2nd DCA 1998); both quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). Respectfully submitted on this July 3, 2013.

SACHS & LA SEUR, P.A.

_____________________________________ COLLEEN C. SACHS, ESQ. Florida Bar Number: 937738 LOIS LA SEUR, ESQ. Florida Bar Number: 607381 1394 County Road 283 South, Building 4 Santa Rosa Beach, FL 32459 (850) 231-0300 voice (813) 315-6400 fax pleadings@sachslaseur.com Attorneys for Defendants Cyrus R. and Marcela T. Harrington

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing Defendants Answer and Affirmative Defenses has been served upon all parties on July 3, 2013, by electronic mail to counsel for Plaintiff on the following: 1. 2. 3. 4. Saquib Ishaq at saqib.ishaq@gray-robinson.com; Ellen Hill at ellen.hill@gray-robinson.com; Julie Marcoux at Julie.marcoux@gray-robinson.com; and Ty Jackson at ty.jackson@gray-robinson.com.

________________________________ COLLEEN C. SACHS, ESQUIRE Florida Bar Number: 937738 Page 18 of 19

LOIS LA SEUR, ESQUIRE Florida Bar Number: 607381

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